But if we examine this principle in its application, we shall find it lead to very great inconveniences. In the case of the Columbia River itself, Mr. Rush claimed the whole of the northwest coast, as far north as the 51st parallel of north latitude, because the north branch of the river rises in that latitude. But the mouth of Frazer’s River is in 49° N. L., so that the discoverer of the mouth of Frazer’s River would be entitled to the coast above the 49th parallel, unless Mr. Greenhow means to confine the application of his principle to what is strictly the valley of the river, and this would be to make the headlands, as before remarked, the lines of territorial demarcation. This certainly would be an intelligible rule, whilst any other interpretation of his meaning would lead to an endless conflict of titles. For otherwise, as observed, the discoverer of the mouth of Frazer’s River would clash with the discoverer of the mouth of the Columbia River, as Frazer’s River extends from 54° 20′ to 49°, and the discoverer of the Salmon River, which rises in about 53°, and, after pursuing a northward course, empties itself into the sea a little below 54°, would clash with the discoverer of the mouth of Frazer’s River. Mr. Rush’s principle seems to assume that all the main rivers of a country pursue a parallel course, and that all the great valleys and mountain ranges are conformable, which however is not the case. Thus the Columbia, after following for some time, in a southward direction, a parallel course to Frazer’s River, is suddenly turned aside to the west by the Blue Mountains, which it meets in about 46° N. L., and arriving at a gap in the Cascade range, finds its way at once to the sea along that parallel, instead of forming a great lake between the Cascade and Blue Mountains, and ultimately working its way out where the Klamet at present empties itself into the Pacific. Mr. Rush’s principle, therefore, does not seem to recommend itself by its convenience; but, assuming for a moment that it is a recognised principle of international law, that a “nation discovering a country by entering the mouth of its principal river at the sea coast, must necessarily be allowed to claim and hold as great an extent of the interior country as was described by the course of the principal river and its tributary streams,” the United States would only be entitled to the valley of the Columbia River, to the country watered by the river itself, and its tributaries: it could not claim to come across the Cascade range on the northern side of the Columbia, to cross the highlands which turn off the waters on their eastern side into the Columbia, and on their western side into Admiralty Inlet; yet, by virtue of the first entrance by Gray of the mouth of the Columbia River, the United States claim, “in their own right, and under their absolute and exclusive sovereignty and dominion, the whole of the country west of the Rocky Mountains, from the 42d to at least as high up as the 51st degree of north latitude.”
Such were the grounds on which the original title of the United States was set up; her derivative title on this occasion was founded upon the cession of the title of Spain by the Treaty of Washington. In support of the Spanish title, Mr. Rush alleged that “Russia had acknowledged it in 1790, as the State Papers of the Nootka Sound controversy would show. But the memorial of the Court of Spain simply states, that in reply to the remonstrance of Spain against the encroachments of Russian navigators within the limits of Spanish America (limits situated within Prince William’s Strait,) Russia declared “that she had given orders that her subjects should make no settlement in places belonging to other Powers, and that if those orders had been violated, and any had been made in Spanish America, she desired the King would put a stop to them in a friendly manner.” (Annual Register, 1790, p. 295.) But Russia did not acknowledge the limits of Spanish America, as set up by Spain; on the contrary, we find M. de Poletica, the Russian minister at Washington, in his letter to Mr. Adams of the 28th February 1822, distinctly asserting that Russian navigators had pushed their discoveries as far south as the forty-ninth degree of north latitude in 1741, and that in 1789 there were Russian colonies in Vancouver’s island, which the Spanish authorities did not disturb, and that Vancouver found a Russian establishment in the Bay of Koniac. (British and Foreign State Papers 1822-23.) Vancouver himself states, that he found a settlement of about one hundred Russians at Port Etches, on the eastern side of Prince William’s Sound, and M. de Poletica, in his negotiations with Mr. Adams, maintained the authenticity of the statement in the two official letters preserved in the Archives of the Marine at Paris, which report that in 1789 Captain Haro, in the Spanish packet St. Charles, found a Russian settlement in the latitude of 48° and 49°. (State Papers, 1825-26, p. 500.) Fleurieu, the French hydrographer, considers these numbers to be erroneous, and that 58° and 59° ought to be read; but he gives no other reason than that the English traders had fully ascertained that the Russians had no establishment to the south of Nootka Sound, which is between 49 and 50 degrees. So far, at least, were the Russians from practically recognising the title of Spain up to 60° north latitude, that in 1799 the Emperor Paul granted to the Russian American Company the exclusive enjoyment of the north-west coast as far south as 55° north lat., in virtue of the discovery of it by Russian navigators, and authorised them to extend their discoveries to the south of 55°, and to occupy all such territories as should not have been previously occupied and placed under subjection by any other nation, (Greenhow, p. 333.) It was further urged by Mr. Rush, that Spain had expressly asserted in 1790, that her territories extended as far as the 60th degree of north latitude; and that she had always maintained her possessions entire, notwithstanding attempted encroachments upon them. This, however, was not admitted by the British Minister at the Court of Madrid: moreover, it was by implication denied in the very first article of the treaty, by which it was stipulated that the buildings and tracts of land on the north-west coast of America, or on islands adjacent to the continent, of which the subjects of his Britannic Majesty had been dispossessed about the middle of April, 1789, by the Spaniards, should be restored to the said British subjects. Again, it was contended by Mr. Rush, that “any claim on the part of Great Britain, under the voyage of Captain Cook, was sufficiently superseded (passing by every thing else) by the Journal of the Spanish expedition from San Blas, in 1775, kept by Don Antonio Maurelle, and published by Daines Barrington, a British author,” in his Miscellanies. It is, however, quite a novel view of the law of nations, that a clandestine discovery should be set up to supersede a patent discovery, notified to all the world by the authoritative publication of the facts. Thus Lord Stowell, in the case of the Fama (5 Robinson’s Reports, 115,) says, “In newly-discovered countries, where a title is meant to be established for the first time, some act of possession is usually done, and proclaimed as a notification of the fact. In a similar manner, in the case of derivative title, it is a recognised rule of international law, that sovereignty does not pass by the mere words of a treaty, without actual delivery. When stipulations of treaties,” observes Lord Stowell, “for ceding particular countries are to be carried into execution, solemn instruments of cession are drawn up, and adequate powers are formally given to the persons by whom the actual delivery is to be made. In modern times more especially, such a proceeding is become almost a matter of necessity, with regard to the territorial establishments of the states of Europe in the New World. The treaties by which they are affected may not be known to them for many months after they are made. Many articles must remain executory only, and not executed till carried into effect; and until that is done by some public act, the former sovereignty must remain. In illustration of the practice of nations being in accordance with this principle, that eminent judge cited the instances of the cession of Nova Scotia to France in 1667, of Louisiana to Spain in 1762, and of East Florida to Spain in 1803, in all of which cases the sovereignty was held not to have passed by the treaty, but by a subsequent formal and public act of notification. Claims of territory are claims of a most sacred nature, and, as the case of vacant lands, a claim of discovery by one nation is to supersede and extinguish thence-forward the rights of all other nations to take possession of the country as vacant, the reason of the thing requires that the newly-acquired character of the country should be indicated by some public act. Thus Mr. Greenhow (p. 116) observes, that the Government of Spain, by its silence as to the results of the expedition of Perez in 1744, deprived itself “of the means of establishing, beyond question, his claim to the discovery of Nootka Sound, which is now, by general consent, assigned to Captain Cook.”
In this conference, the Convention of the Escurial, or, as it was termed, the Nootka Sound Convention, was introduced by Mr. Rush, in accordance with the express instructions of the United States Government. Mr. Greenhow seems to consider that this was an impolitic step on the part of the United States, as they thereby admitted it to be a subsisting treaty. Mr. Rush certainly maintained that the convention contained recognitions of rights, such as the exclusive colonial rights of Spain, but he further contended that, “whilst, by it, the nations of Europe generally were allowed to make settlements on that coast, it was only, for the purposes of the trade with the natives, thereby excluding the right of any exclusive or colonial establishments for other purposes.” To the same purport Mr. Greenhow (p. 340) in a note says, “The principles settled by the Nootka Sound Convention were:—
“1st. That the rights of fishing in the South Seas; of trading with the natives of the north-west coast of America; and of making settlements on the coast itself, for the purposes of that trade, north of the actual settlements of Spain, were common to all the European nations, and of course to the United States.”
This view, however, of the purport of the Convention of the Escurial, falls short of the full bearing of the 3rd article, which is the one alluded to; by which it was agreed, “that their respective subjects shall not be disturbed or molested, either in navigating or carrying on their fisheries in the Pacific Ocean, or the South Seas, or in landing on the coasts of those seas, in places not already occupied, for the purpose of carrying on their commerce with the natives of the country, or of making settlements there.” There is no restriction here as to the object of the settlement: on the contrary, the making settlements is specified as distinct from the landing on the coast for the purposes of trade. It is obvious that, if the intention of the framers of the convention had been such as asserted by Mr. Rush, they would have worded the article otherwise, viz., “or in landing on the coasts of those seas, or in making settlements there, in places not already occupied, for the purpose of carrying on their commerce with the natives of the country.” The argument, therefore, advanced by Mr. Rush, must, upon the face of the words of it, be held to give an imperfect view of the rights mutually acknowledged by the Treaty of the Escurial.
But the meaning of the word “settlement” in the treaty will be obvious, if either the antecedent facts, or the antecedent negotiations, are regarded. In the memorial of the Court of Spain [Annual Register, 1790, p. 295,] it is stated, that before the visit of Martinez to Nootka, Spain did not know that the English had endeavoured to make settlements on the northern parts of the Southern Ocean, though she had been aware of trespasses made by the English on some of the islands of those coasts. Martinez, on arriving at Nootka, had found two American vessels, [the Columbia and Washington,] but as it appeared from their papers that they were driven there by distress, and only came in there to refit, he permitted them to proceed upon their voyage.
“He also found there the Iphigenia from Macao, under Portuguese colours, which had a passport from the Governor; and though he [the captain] came manifestly with a view to trade there, yet the Spanish Admiral, when he saw his instructions, gave him leave to depart, upon his signing an engagement to pay the value of the vessel, should the Government of Mexico declare it a lawful prize.
“With this vessel there came a second [the North-west America,] which the Admiral detained and a few days after a third, named the Argonaut, from the above-mentioned place. The captain [Colnett] of this latter was an Englishman. He came not only to trade, but brought every thing with him proper to form a settlement there and to fortify it. This, notwithstanding the remonstrances of the Spanish Admiral, he persevered in, and was detained, together with his vessel.
“After him came a fourth English vessel, named the Princess Royal, and evidently for the same purposes. She likewise was detained, and sent into Port St. Blas, where the pilot of the Argonaut made away with himself.”
What these purposes were, is more fully shown from the letter of instructions which Capt. Colnett carried with him, and which is to be found in the Appendix to Meares’ Voyages, having been annexed to Meares’ Memorial.